Madhya Pradesh High Court
Smt. Nirmala Soni vs Public Health And Family Welfare ... on 21 February, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 21st OF FEBRUARY, 2025
WRIT PETITION No. 11263 of 2019
SMT. NIRMALA SONI
Versus
PUBLIC HEALTH AND FAMILY WELFARE DEPARTMENT AND
OTHERS
Appearance:
Shri Ranjeet Sen - advocate for the petitioner.
Dr. Amit Bhatia -GA appearing on behalf of Advocate General.
ORDER
By this petition preferred under Article 226 of the Constitution of India,
the petitioner has challenged the order dated 15.11.2018 [Annexure P/1]
passed by the respondents whereby recovery in the sum of Rs.56,573- (which
includes the principal as well as interest amount) has been directed to be
made from him.
2. The petitioner has retired from the post of a Lady Health Visitor (LHV)
which is a Class- III post. The recovery has been directed to be made from
the petitioner on account of wrong pay fixation.
3. The Full Bench of this Court at Principal Seat, Jabalpur in identical
matters has quashed such recovery orders by judgment dated 06.03.2024
passed in Writ Appeal No.815 of 2017 [State of Madhya Pradesh and
Another vs. Jagdish Prasad Dubey and Another] and connected writ petitions
reported in 2024 SCC online MP 1567 . It has been held in paragraph No.35
as under:
"Answers to the questions referred
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35.(a) Question No.1 is answered by holding that recovery can be
effected from the pensionary benefits or from the salary based on
the undertaking or the indemnity bond given by the employee
before the grant of benefit of pay refixation. The question of
hardship of a Government servant has to be taken note of in
pursuance to the judgment passed by the Larger Bench of the
Hon'ble Supreme Court in the case of Syed Abdul Qadir (supra).
The time period as fixed in the case of Rafiq Masih (supra)
reported in (2015) 4 SCC 334 requires to be followed.Conversely
an undertaking given at the stage of payment of retiral dues with
reference to the refixation of pay or increments donedecades ago
cannot be enforced.
(b) Question No.2 is answered by holding that recovery can be
made towards the excess payment made in terms of Rules 65 and
66 of the Rules of 1976 provided that the entire procedures as
contemplated in Chapter VIII of the Rules of 1976 are followed by
the employer. However, no recovery can be made in pursuance to
Rule 65 of the Rules of 1976 towards revision of pay which has
been extended to a Government servant much earlier. In such
cases, recovery can be made in terms of the answer to Question
No.1.
(c) Question No.3 is answered by holding that the undertaking
given by the employee at the time of grant of financial benefits on
account of refixation of pay is a forced undertaking and is
therefore not enforceable in the light of the judgment of the
Hon'ble Supreme Court in the case of Central Inland Water
Transport Corporation Limited and Another vs. Brojo Nath
Ganguly and Another,
reported in (1986) 3 SCC 136 unless the undertaking is given
voluntarily."
4. As per the aforesaid judgment, even if there had been any undertaking by
the petitioner at the time of his wrong pay fixation or subsequent thereto,
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then also the matter is required to be considered in the light of the judgment
of the Apex Court in the case of State of Punjab and Others V/s. Rafiq Masih
(White Washer) 2015 (1) MPHT 130 (SC) in which it has been held under:
"18. While it is not possible to postulate all situations of
hardships where payments have mistakenly been made by an
employer, in the following situations, a recovery by the employer
would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV
service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due
to retire within one year of the order of recovery.
(iii) Recovery from employees, when the excess payment has been
made for a period in excess of five years, before the order of
recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been paid
accordingly, even though he should have rightfully been required
to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion,
that recovery if made from the employee, would be iniquitous or
harsh or arbitrary to such an extent, as would far outweigh the
equitable balance of the employer's right to recover."
5. In the present case also the petitioner was working on a Class-III post.
She has since retired. The recovery has been directed to be made from him
on account of wrong pay fixation for a period much more in excess of five
years from the date of recovery which has been directed at the fag end of his
career. The same is in fact spanning over a period of forty years. There does
not appear to have been any error on part of the petitioner in the matter of his
wrong pay fixation. Thus even if any undertaking had been furnished by the
petitioner the same would not be of any avail to the respondents.
6. In view of the above the order dated 15.11.2018 (Annexure P/1) passed by
the respondents is hereby quashed. The amount, if any, recovered from the
petitioner be refunded to him along with interest @ 6% per annum from the
date of recovery till date of payment. Let the same be done within a period of
three months from the date of receipt of certified copy of this order. The pay
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fixation of the petitioner is however maintained. If the retiral dues of the
petitioner have been withheld by the respondents only on account of the
recovery order passed against him, then in view of quashment of such order,
the same be paid to him within a period of three months from the date of
receipt of certified copy of this order.
7. The petition is accordingly allowed and disposed of.
(SUBODH ABHYANKAR)
JUDGE
das
